OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
OVERSTREET, Judge.
Appellant was charged by indictment with the offense of delivery of cocaine of less than twenty-eight grams pursuant to V.T.C.A. Health & Safety, § 481.112(a), alleged to have been committed on or about February 20, 1992, in Franklin County. In January of 1994, appellant pled guilty, in a trial by jury, to a charge of delivery of cocaine of less than twenty-eight grams and was sentenced to seventy-seven years imprisonment. The [951] Sixth Court of Appeals affirmed the conviction. Mitchell v. State, 892 S.W.2d 213 (Tex.App.-Texarkana 1995). Appellant’s Petition for Discretionary Review was granted.1
I.STATEMENT OF PERTINENT FACTS
During the punishment phase of appellant’s trial, the State offered evidence of four extraneous offenses. Outside the presence of the jury, the trial court determined that the extraneous offenses were relevant, that the State had proved them beyond a reasonable doubt, and therefore ruled them admissible. The extraneous offenses were then presented to the jury by the State. Appellant subsequently requested that the trial court include the following instructions in the jury charge:
(1) instruction on the burden of proof of extraneous offenses required by § 37.07, Annotated Code of Criminal Procedure (Vernon’s 1994) (hereinafter V.A.C.C.P.), which requires that the State prove the extraneous offenses beyond a reasonable doubt;
(2) a definition of reasonable doubt; and
(3) a limiting instruction regarding any extraneous offense, instructing the jury that if it believes those offenses have been proven beyond a reasonable doubt, they are not to be used in setting the punishment of this defendant, but rather to determine the proper punishment in this particular case alone.
The trial court denied the entirety of appellant’s request for additions to the jury charge, basing its holding on the theory that Art. 37.07, V.A.C.C.P., goes to the admissibility of the evidence, and not to the weight given the evidence by the jury. Appellant made a timely objection to the trial court’s denial of his request, and error was preserved for appeal.
II. COURT OF APPEALS’ DECISION
The court of appeals held that Art. 37.07, § 3(a), V.A.C.C.P., does not require that the State prove that appellant was convicted of or charged with the extraneous offenses in order to present it to the jury, nor does the statute require that the “[ejvidence conform to the rules governing the admissibility of extraneous offenses or character evidence at the guilt/innocenee phase.” Mitchell v. State, 892 S.W.2d at 214. Further, the court of appeals held that the “[rjequirement of proof beyond a reasonable doubt is a preliminary requirement for the admissibility of the evidence of extraneous offenses rather than a part of the State’s case and that it is the judge rather than the jury who should make that determination at the punishment stage of the trial.” Id. at 215.
III. APPELLANT’S CONTENTIONS
In his Petition for Discretionary Review, appellant contends that this Court has yet to decide whether Art. 37.07, § 3, V.A.C.C.P., as amended by the Legislature in 1993, applies similarly in both guili/innocence and punishment when offering evidence of extraneous offenses. Appellant cites the following language in Art. 37.07, § 3(a) as pertinent to the instant issue:
[Ejvidence may be offered by the [Sjtate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged [952] with or finally convicted of the crime or act.
(Emphasis added).2
Appellant contends that Art. 37.07, § 3, V.A.C.C.P., applies the same burden of proof standard for extraneous offenses in both the guilt/innocence and punishment phases of a trial when a defendant requests that an instruction on the issue be given to the jury. Appellant argues that on prior occasions this Court has demonstrated the importance of the use of instructions when offering evidence of extraneous offenses. In George v. State, 890 S.W.2d 73 (Tex.Crim.App.1994), this Court determined that an instruction about the use of extraneous offenses applies during the guili/innocence phase of non-capital eases. Furthermore, appellant argues that the court of appeals’ dissenting opinion below is dispositive, and not giving an instruction on the burden of proof required of the State when offering the evidence in effect allows the trial court to act as the “exclusive finder of fact.” Mitchell v. State, 892 S.W.2d at 216 (Grant, J., dissenting).
IV. STATE’S CONTENTIONS
The State has not filed a response to appellant’s petition, nor a reply brief to appellant’s brief after discretionary review was granted. Before the court of appeals the State argued that the legislative intent of Art. 37.07, § 3 is in favor of the trial court determining the admissibility of evidence of extraneous offenses, as well as determining the weight to be given the evidence by the jury. The State asserted that the Legislature had the opportunity to adopt a definitive policy on the treatment of extraneous offenses during the punishment phase when it added extraneous offenses to the previously enumerated list of offenses that could be brought forth during the punishment phase of a trial. See Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992).
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
OVERSTREET, Judge.
Appellant was charged by indictment with the offense of delivery of cocaine of less than twenty-eight grams pursuant to V.T.C.A. Health & Safety, § 481.112(a), alleged to have been committed on or about February 20, 1992, in Franklin County. In January of 1994, appellant pled guilty, in a trial by jury, to a charge of delivery of cocaine of less than twenty-eight grams and was sentenced to seventy-seven years imprisonment. The [951] Sixth Court of Appeals affirmed the conviction. Mitchell v. State, 892 S.W.2d 213 (Tex.App.-Texarkana 1995). Appellant’s Petition for Discretionary Review was granted.1
I.STATEMENT OF PERTINENT FACTS
During the punishment phase of appellant’s trial, the State offered evidence of four extraneous offenses. Outside the presence of the jury, the trial court determined that the extraneous offenses were relevant, that the State had proved them beyond a reasonable doubt, and therefore ruled them admissible. The extraneous offenses were then presented to the jury by the State. Appellant subsequently requested that the trial court include the following instructions in the jury charge:
(1) instruction on the burden of proof of extraneous offenses required by § 37.07, Annotated Code of Criminal Procedure (Vernon’s 1994) (hereinafter V.A.C.C.P.), which requires that the State prove the extraneous offenses beyond a reasonable doubt;
(2) a definition of reasonable doubt; and
(3) a limiting instruction regarding any extraneous offense, instructing the jury that if it believes those offenses have been proven beyond a reasonable doubt, they are not to be used in setting the punishment of this defendant, but rather to determine the proper punishment in this particular case alone.
The trial court denied the entirety of appellant’s request for additions to the jury charge, basing its holding on the theory that Art. 37.07, V.A.C.C.P., goes to the admissibility of the evidence, and not to the weight given the evidence by the jury. Appellant made a timely objection to the trial court’s denial of his request, and error was preserved for appeal.
II. COURT OF APPEALS’ DECISION
The court of appeals held that Art. 37.07, § 3(a), V.A.C.C.P., does not require that the State prove that appellant was convicted of or charged with the extraneous offenses in order to present it to the jury, nor does the statute require that the “[ejvidence conform to the rules governing the admissibility of extraneous offenses or character evidence at the guilt/innocenee phase.” Mitchell v. State, 892 S.W.2d at 214. Further, the court of appeals held that the “[rjequirement of proof beyond a reasonable doubt is a preliminary requirement for the admissibility of the evidence of extraneous offenses rather than a part of the State’s case and that it is the judge rather than the jury who should make that determination at the punishment stage of the trial.” Id. at 215.
III. APPELLANT’S CONTENTIONS
In his Petition for Discretionary Review, appellant contends that this Court has yet to decide whether Art. 37.07, § 3, V.A.C.C.P., as amended by the Legislature in 1993, applies similarly in both guili/innocence and punishment when offering evidence of extraneous offenses. Appellant cites the following language in Art. 37.07, § 3(a) as pertinent to the instant issue:
[Ejvidence may be offered by the [Sjtate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged [952] with or finally convicted of the crime or act.
(Emphasis added).2
Appellant contends that Art. 37.07, § 3, V.A.C.C.P., applies the same burden of proof standard for extraneous offenses in both the guilt/innocence and punishment phases of a trial when a defendant requests that an instruction on the issue be given to the jury. Appellant argues that on prior occasions this Court has demonstrated the importance of the use of instructions when offering evidence of extraneous offenses. In George v. State, 890 S.W.2d 73 (Tex.Crim.App.1994), this Court determined that an instruction about the use of extraneous offenses applies during the guili/innocence phase of non-capital eases. Furthermore, appellant argues that the court of appeals’ dissenting opinion below is dispositive, and not giving an instruction on the burden of proof required of the State when offering the evidence in effect allows the trial court to act as the “exclusive finder of fact.” Mitchell v. State, 892 S.W.2d at 216 (Grant, J., dissenting).
IV. STATE’S CONTENTIONS
The State has not filed a response to appellant’s petition, nor a reply brief to appellant’s brief after discretionary review was granted. Before the court of appeals the State argued that the legislative intent of Art. 37.07, § 3 is in favor of the trial court determining the admissibility of evidence of extraneous offenses, as well as determining the weight to be given the evidence by the jury. The State asserted that the Legislature had the opportunity to adopt a definitive policy on the treatment of extraneous offenses during the punishment phase when it added extraneous offenses to the previously enumerated list of offenses that could be brought forth during the punishment phase of a trial. See Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992).
Furthermore, the State contended that the admissibility of extraneous offenses should be viewed in the standard context of Tex. R.Crim.Evid. 404, as applied in the two-prong test set forth in Robinson, where the Court held that (1) an extraneous offense must be relevant to a material issue in the case other than the defendant’s character, and (2) the probative value of the evidence must outweigh its prejudicial effect. See Robinson v. State, 701 S.W.2d 895 (Tex.Crim.App.1986). The State contended that the issue complained of is a preliminary question, and has to be determined before the evidence is put before the jury, and the trial court has been vested with that responsibility. Furthermore, the State asserted that the court must also apply “common-sense” rules developed in Ford, where the Court determined that the State must prove beyond a reasonable doubt that the defendant is one in the same person who committed the extraneous act, and there was a distinguishable characteristic or circumstance that is common to the extraneous offense and the current crime. Ford v. State, 484 S.W.2d 727 (Tex.Crim.App.1972). Thus, the State contended that inherent in admissibility is confirmation of the fact that the defendant committed the act; therefore, there is no need for the State to have to prove the evidence a second time. Moreover, the State also asserted that a limiting instruction concerning the use of extraneous offenses during the punishment phase of a trial is unnecessary because the guilt of the person has already been ascertained, and there is no likelihood that the jury could use the extraneous offense evidence to prejudice itself against appellant.
V. ANALYSIS
Under Art. 37.07, § 3(a), the Texas Legislature determined that evidence as to any matter may be offered dining the punishment phase of a trial if the trial court deems it relevant to sentencing. Also, the Legislature has determined that evidence of extraneous crimes or bad acts are admissible subject to certain conditions being met. Specifically:
[Ejvidence may be offered by the [Sjtate and the defendant as to any matter the [953] court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Article 37.07, § 3(a), V.AC.C.P. (Emphasis added) We believe that the emphasized portions of the statute are at the crux of the instant issue. A thorough review of the highlighted areas of the statute tells the reader what may be offered, by whom it may be offered, to whom the evidence may be offered, and the standard of proof required in proving that evidence; however, the statute offers no guidance to the reader on whether or not the jury as the sentencing body has a role in evaluating the use of the extraneous offenses offered during the punishment phase of a trial.
We agree with the court of appeals in the instant case when it noted that the statute “is silent as to who decides whether the State has met its burden[,]” i.e. whether or not the jury rather than the trial court determines the weight to be given to the admitted evidence. Mitchell v. State, 892 S.W.2d at 215. However, we do not find the Legislature’s silence in this statute to be dispositive, and in light of the jurisprudence of this Court, we find that the jury is the “ultimate finder of fact,” even in those instances where the statute may not explicitly state that fact.
While we do not agree that the trial court, during the punishment phase of jury trials, has manifested itself in a way as to be considered the finder of law and fact, this Court does stand firm to its holdings which support the trial court as the exclusive judge on matters of law when making a judgment on the threshold admissibility test. A trial court’s actions as to the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard. Saenz v. State, 843 S.W.2d 24, 26 (Tex.Cr.App.1992). However, this Court has not extended the purview of the trial court beyond the boundaries of determining matters of law to that of deciding questions of fact in jury trials. Correspondingly, the Legislature has acted in tandem with this Court by stating, in Article 36.13, V.A.C.C.P., that “[t]he jury is the exclusive judge of the facts-” Art. 36.13 adds that the jury, while “the exclusive judge of the facts[,]” is bound to “receive the law from the court and be governed thereby.” Consequently, we find that the trial court is deemed the authority on the threshold issue of admissibility of relevant evidence during the punishment phase of a trial, while the jury, as the “exclusive judge of the facts,” i.e. finder of fact, determines whether or not the burden of proof for those offenses presented has been satisfied by the party offering the evidence.
Although this Court and the Legislature have consistently put forth the same general standards for the roles of the trial court and the jury, respectively, the courts of appeals have expressed divergent views on how to handle the distribution of duties between the trial court and the jury when offering evidence of extraneous offenses during the punishment phase of a trial. Two courts of appeals have addressed the issue on point— the instant case and Escovedo v. State, 902 S.W.2d 109 (Tex.App.—Houston [1st Dist.] 1995, pet. filed).
In Escovedo, the State offered evidence of an extraneous offense committed by the defendant. The defendant objected to the jury charge and requested that the jury be instructed not to consider the offense unless it believed that the State had proven the offense beyond a reasonable doubt. The trial court overruled the objection and denied the requested instruction. Escovedo v. State, 902 S.W.2d at 112. The majority in Escove-do affirmed the judgment of the trial court, [954] but in its holding found that the jury, not the trial court, determines whether or not the State has satisfied its burden of proving the extraneous offenses, and should be so instructed. Escovedo v. State, 902 S.W.2d at 114.
The majority in Escovedo as well as the dissent in Mitchell found that this Court has determined that the relationship between instructions and extraneous offenses have longstanding precedent. Escovedo v. State, 902 S.W.2d at 114; Mitchell v. State, 892 S.W.2d at 216.
The link between extraneous offenses and the use of instructions during the guilt/innocence phase of a trial has been thoroughly examined by this Court. In Harrell v. State, 884 S.W.2d 154, 159-60 (Tex.Crim.App.1994), we held that the standard of admissibility for extraneous offense evidence is beyond a reasonable doubt. Furthermore, as noted previously, in George, supra, we found that if a defendant, during the guill/inno-cenee phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction. George v. State, 890 S.W.2d at 76. While we determined that instructions on the use of extraneous offenses given during guilt/innocence are vital to a fair administration of justice, we declined at that time to comment on the use of extraneous offenses in the punishment phase of trial. Although not explicitly stated, we find that the use of extraneous offenses during the punishment phase should be analogous to that of the guilt/innocence phase of a trial regarding burden of proof. The use of evidence of extraneous offenses during the guilt/innocence phase is used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” During the punishment phase, evidence of an extraneous offense is offered to assist the trial court or the jury in determining punishment. When evidence of extraneous offenses has been offered, regardless of the respective phase of a trial, the law requires that it be proved beyond a reasonable doubt that the defendant committed the said extraneous' offenses, or is at least criminally responsible for its commission. See Harrell v. State, supra.
This Court agrees with the court of appeals in its holding only to the extent that the trial judge has the responsibility of determining the threshold admissibility of extraneous offenses in the punishment phase; however, we do not find that the role of the jury has been supplanted by the trial court in determining whether or not the State has proven the extraneous offenses beyond a reasonable doubt. Further, we recognize the line of reasoning offered in Justice Grant’s dissenting opinion to Mitchell to be meritorious, and follow somewhat in that same vein. Therefore, we conclude that, during the punishment stage of a trial, the jury as “the exclusive judge of the facts” is to determine whether or not the State has proved the extraneous offenses beyond a reasonable doubt and should be so instructed when requested. Thus the trial court erred in refusing to so instruct the jury when appellant requested such an instruction.
VI. CONCLUSION
We find that the court of appeals erred in holding that during the punishment phase, the trial court determines whether or not the State has proved extraneous offenses beyond a reasonable doubt rather than the jury. Accordingly, we reverse the judgment of the court of appeals and remand this cause to the court of appeals to conduct a harm analysis of the trial court’s action of denying appellant’s requested instruction on proof of the extraneous offenses beyond a reasonable doubt. See, e.g., Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985)(op. on reh’g) and Arline v. State, 721 S.W.2d 348 (Tex.Cr.App.1986).
WHITE, J., not participating.